Supreme Disorder

Judicial Nominations and the Politics of America's Highest Court

Ilya Shapiro

• Editorial: Regnery Gateway
• Año: 2020
• ISBN:
  9781684510726
• Categoría: Politics & International Relations
• Categoría: Conservatism & Liberalism

NAMED ONE OF THE BEST BOOKS OF 2021: POLITICS BY THE WALL STREET JOURNAL "A must-read for anyone interested in the Supreme Court." —M IKE LEE, Republican senator from Utah Politics have always intruded on Supreme Court appointments. But although the Framers would recognize the way justices are nominated and confirmed today, something is different. Why have appointments to the high court become one of the most explosive features of our system of government? As Ilya Shapiro makes clear in Supreme Disorder, this problem is part of a larger phenomenon. As government has grown, its laws reaching even further into our lives, the courts that interpret those laws have become enormously powerful. If we fight over each new appointment as though everything were at stake, it's because it is. When decades of constitutional corruption have left us subject to an all-powerful tribunal, passions are sure to flare on the infrequent occasions when the political system has an opportunity to shape it. And so we find the process of judicial appointments verging on dysfunction. Shapiro weighs the many proposals for reform, from the modest (term limits) to the radical (court-packing), but shows that there can be no quick fix for a judicial system suffering a crisis of legitimacy. And in the end, the only measure of the Court's legitimacy that matters is the extent to which it maintains, or rebalances, our constitutional order.

Part I—Past A Short History of Confirmation Battles

CHAPTER 1 The Early Court

When they set out to design the Supreme Court, the Framers debated various ways to appoint the members of the judicial branch. We know from James Madison’s notes of the Constitutional Convention that, by July 1787, the delegates seemed to have settled on having the Senate appoint federal judges. It looked like the judiciary, or at least the high court, was one more part of the young republic that would have state interests paramount, as filtered through the upper house of Congress.

As the delegates moved on to other aspects of their deliberations, discussion of the judiciary focused on the scope of its powers and the sorts of cases federal judges would consider. It was understood, without being written into the Constitution, that the justices would “ride circuit,” traveling to designated parts of the country to preside over cases when the high court wasn’t sitting. The Judiciary Act of 1789, which established that the Supreme Court would have six members and created the lower federal courts, designated one local U.S. district court judge and two Supreme Court justices to preside over cases—which required such arduous travel that Congress soon reduced the number of justices required to hold circuit court from two to one.

Still, the mechanism for choosing justices confounded the delegates until the Convention’s final days in September, when a draft emerged that balanced the views of those like Benjamin Franklin and John Rutledge, who called for a legislative role to prevent monarchical tendencies in the executive, and those like James Wilson, Alexander Hamilton, and Gouverneur Morris, who favored strongly independent executive prerogatives.¹ The final text reflected a Madisonian compromise that the president “shall nominate, and, by and with the advice and consent of the Senate, shall appoint… Judges of the Supreme Court.” This last-minute change seems to have been lost in the debate over the legislative and executive branches; at least two delegates continued to write and speak about the Senate’s naming federal judges.²

But what did this “advice and consent” mean? In Federalist No. 76, Hamilton wrote that the provision requires “cooperation” between the president and Senate, a body some delegates generally viewed as an informal advisory council to the president, somewhat akin to the modern cabinet. Hamilton explained that senatorial advice and consent “would be an excellent check upon a spirit of favoritism in the President.… It would be an efficacious source of stability.”

Historians and political scientists have continued to debate the meaning of the Advice and Consent Clause, but all we know for sure is its simple text: it’s the president’s duty to nominate judicial candidates and the Senate’s to decide whether to consent to such nominations (after giving whatever advice senators wish to give)—and if not, to reject, table, or otherwise take no action according to Senate rules. To date, presidents have officially submitted 163 Supreme Court nominations to the Senate, which has confirmed 126 of them (seven of whom declined to serve); the others were rejected (twelve), withdrawn (twelve), postponed (three), or had no action taken (ten).³

For obvious reasons, George Washington had the most opportunities to make Supreme Court appointments. All told, the first president made fourteen nominations, twelve of which were confirmed, one rejected, and one withdrawn and resubmitted to satisfy the constitutional rule that a sitting member of Congress can’t be appointed to an office created during his tenure. Notably, two of the confirmed picks declined to serve.

Washington had seven criteria in choosing his justices, to which he adhered rigorously: (1) support for the new Constitution; (2) service in the Revolution; (3) participation in state or national political life; (4) prior judicial experience; (5) either a “favorable reputation with his fellows” or personal ties with Washington himself; (6) geographic diversity; and (7) “love of our country.”⁴ The most important one was undoubtedly the first, as Washington sensed that, much as he himself was creating the mold for all future chief executives, the early Supreme Court would flesh out the young republic’s constitutional mores, including the establishment of a distinct national government with a strong judiciary. In commissioning letters to his nominees to the original six-member Court in September–October 1789, he wrote, “The Judicial System is the chief Pillar upon which our national Government must rest.”⁵

Although not a lawyer himself, Washington had meaningful experience with and respect for the law. He had served seventeen years as a state legislator and seven as a justice of the peace and county court judge, and had administered at least nine estates. Accordingly, all but one of his appointees had served in some judicial capacity, the one exception being the brilliant legal theorist and constitutional framer James Wilson. And seven of those whom the president tapped for the high bench had participated in the Constitutional Convention.

Washington was also sensitive to various state controversies in ratifying the Constitution, so his first justices were from Maryland, Massachusetts, New York, Pennsylvania, South Carolina, and Virginia, respectively. And when the Maryland nominee declined his commission, his replacement was from yet another state, North Carolina. The members of the “original six” had varied backgrounds but a clear commitment to the Constitution and the Federalist cause of building a nation out of disparate states. While Washington made some political calculations when deciding who should serve, he had more trouble convincing potential nominees to accept the nomination than in securing congressional approval.

Despite Washington’s high hopes, the early Supreme Court suffered from a lack of both prestige and work, not to mention the unglamorous circuit-riding, which led to significant turnover, as well as difficulties in filling seats. Justice John Rutledge left the Court after two years, before hearing any cases, to become chief justice of South Carolina. Washington unsuccessfully offered the seat to two other South Carolinians, including Rutledge’s brother Edward, the youngest signatory of the Declaration of Independence. Chief Justice John Jay, who spent part of his tenure serving as minister to Great Britain—he negotiated what became known as the Jay Treaty, resolving issues left over from the Treaty of Paris that ended the Revolutionary War—resigned from the Court in 1795 to become governor of New York.

After Jay resigned, Washington received a letter from John Rutledge asking to be reappointed. Washington immediately offered Rutledge the position, which became a recess appointment because the Senate was not in session. But before formally taking the judicial oath, Rutledge gave a controversial and intemperate speech against the Jay Treaty that set off the nation’s first confirmation controversy. Not that opposition to the treaty, premised on the idea that Jay had conceded too much to secure the final withdrawal of British troops, was an unpopular position. At a public meeting in New York, people literally threw stones at Hamilton for defending it, while residents of Rutledge’s own Charleston burned Jay in effigy and dragged the Union Jack through the streets before burning it in front of the British consulate. Still, Rutledge’s language was extreme; the South Carolina State-Gazette quoted the chief justice-designate as saying he’d rather the president die than sign the treaty.⁶

Reports of Rutledge’s remarks cost the new chief justice the support of administration officials and the Federalist-friendly press. Rutledge presided over the Court for nearly four months, until the Senate rejected him 10–14. (Ironically, at the Constitutional Convention, Rutledge had led the charge against Wilson’s suggestion that the president be allowed to name justices without Senate assent.)⁷ Vice President John Adams wrote to his wife Abigail that it “gave me pain for an old friend, though I could not but think he deserved it. Chief Justices must not go to illegal Meetings and become popular orators in favor of Sedition, nor inflame the popular discontents which are ill founded, nor propagate Disunion, Division, Contention and delusion among the people.”⁸

Rutledge left the Court as the only justice among fifteen recess appointees who wasn’t eventually confirmed. Despondent at this outcome, and so soon after his wife’s death, Rutledge attempted suicide by jumping into Charleston Harbor. He was rescued by two slaves.

As the fight over the chief justiceship proceeded—it would go to Oliver Ellsworth, who had defended the Supreme Court’s power of judicial review at the Constitutional Convention—Washington had one more seat to fill. Having chosen Rutledge over Samuel Chase, the chief justice of Maryland, the president now named Chase, though not without reservation. Chase had served in the Continental Congress and signed the Declaration of Independence, but voted against the Constitution at Maryland’s ratifying convention and advocated against it in a series of Antifederalist essays under the name “Caution.” He was also voted out of legislative office when it was discovered that he had tried to corner the flour market using information gained through his service in Congress. A few years later, foreshadowing what was to come when he joined the high court, the Maryland legislature considered removing him from state judicial office.

After Maryland nonetheless ratified the Constitution, Chase saw the light and, with the zeal of a convert, gave impassioned speeches denouncing the Democratic-Republican Party. During the 1796 election, while a sitting justice, he predicted that with a Thomas Jefferson victory, “our republican institution will sink into a mobocracy.”⁹ When Adams won, Chase advocated the enactment of the Alien and Sedition Acts, which posed obvious threats to the freedom of speech. For these and many other instances of ill-tempered behavior, the House of Representatives approved eight articles of impeachment in March 1805.

Although Republicans had a 25–9 majority over the Federalists in the Senate, Chase was acquitted outright on six counts and only convicted 18–16 on two others (short of the two-thirds necessary for removal). He remains the only justice ever to be impeached, but many senators felt that removal was too harsh a penalty. Senator John Quincy Adams expressed concern that, in the absence of contrary precedent, impeachment could destabilize the judiciary if reasons could be developed for emptying the entire Supreme Court.¹⁰ Chief Justice William Rehnquist would write that some senators declined to convict Chase despite their hostility to him—partisan and personal—because they doubted that the mere quality of his judging was grounds for removal.¹¹

All judicial impeachments since Chase have been based on legal or ethical misconduct, not performance. For their part, federal judges since that time have generally been more cautious to avoid the appearance of partisanship.

Although he did have one nominee rejected, the stately Washington was able to use his judicial nominations to strengthen the new republic and bolster political support for the Constitution. Geographic considerations, as well as a commitment to a unified federal government, were thus of paramount importance in selecting judges who could convince the various states to bind themselves in the American project.

The End of the Beginning

Washington’s successors, regardless of their party, shared his goal of using the judiciary to advance the federal cause. Geography would thus remain a central concern in the selection process, both to continue forging national unity and for more immediate political interests.

Some of our most storied justices were chosen out of a concern for maintaining balanced state representation. The fact that there had been no Virginian on the Court since 1796 weighed on President John Adams, leading him to offer his first nomination to John Marshall, already a distinguished lawyer and diplomat but whose judicial service was limited to a minor state tribunal. Marshall initially declined for financial reasons, but accepted two years later when the chief justiceship came open.

Picking Marshall was the masterstroke of the Adams presidency. Ironically, Adams had first wanted John Jay to return to his previous post, and the Senate confirmed that nomination, which commission was signed by Marshall, then serving as secretary of state. But Jay declined, out of a distaste for circuit-riding and because the Court still lacked “energy, weight, and dignity.”¹² Adams was then importuned to appoint any number of politically connected choices, but demurred because, having by this point lost the election of 1800 to the “radical” Thomas Jefferson, he needed to be assured that his own man would be in place. So he went with Marshall, who although Jefferson’s second cousin, was the incoming president’s avowed political enemy. The nomination is a defining moment in U.S. history, even if the Senate at the time would have preferred sitting Justice William Paterson—whom Adams passed over because he was of the Hamiltonian faction—and stalled consideration of the nomination in hopes of reconsideration. When Adams, now a lame duck with nothing to lose, held firm, the Senate yielded to Marshall’s overwhelming qualifications and confirmed him by acclamation.

While it may be hard to believe that a legal titan as universally esteemed as John Marshall could have been the subject of a nomination dispute, political factions are always keen to express their self-interest. Marshall, who served longer than any other chief, is remembered for finally establishing the Court as the institution that many Founders had wanted it to be. It’s no exaggeration to say that Marshall’s labors realized the Federalist dream of a united and powerful country, operationalizing the Washington-Adams ideology perhaps more than any other justice with respect to the president who made the appointment.

In the early days, political battles over the judiciary had less to do with individual nominees and more with ironing out the Supreme Court’s function. Shortly before John Adams’s single term expired, the Federalist Congress passed the Judiciary Act of 1801, the purposes of which were, first, to relieve the circuit-riding burden on Supreme Court justices and, second, to preempt Thomas Jefferson’s influence on the judiciary. Accordingly, it reduced the number of Supreme Court seats from six to five, effective with the next vacancy, doubled the number of circuits from three to six, and added several judges to each circuit. It also reorganized the district courts and created various other judgeships. Adams filled all the vacancies in the nineteen days before the end of his term, so the legislation became known as the Midnight Judges Act. It was t...